Studia Prawa Publicznego, 2017, Nr 3 (19)

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    Sprawozdanie z Międzynarodowej Konferencji Naukowej „Republicyzacja zadań publicznych”, Poznań, 9 czerwca 2017 r.
    (Wydawnictwo Naukowe UAM, 2017) Staniszewska, Lucyna; Jędrzejczak, Maria
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    W sprawie doktoratów w projektach założeń Prawa szkolnictwa wyższego (Ustawa 2.0)
    (Wydawnictwo Naukowe UAM, 2017) Wojtczak, Krystyna
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    Kilka uwag o Internetowej Platformie Aukcyjnej umożliwiającej uzyskanie wsparcia w zakresie odnawialnych źródeł energii w kontekście podpisów elektronicznych
    (Wydawnictwo Naukowe UAM, 2017) Trupkiewicz, Marcin
    The paper describes certain basic principles of the new system of supporting renewable energy sources (RES) introduced in Poland. The amended Polish Act on Renewable Energy Sources (Polish RES Act) has introduced an auction system which is a new legal instrument enabling the selection of RES generators with adequate fi nancial support. Each Renewable Energy Sources project (RES plant project) to generate and sell electricity must go offi cially through an auction. The Internet Auction Platform is an IT tool used in the process. It en ables to conduct the pre-qualifi cation procedure as well as to prepare the auction off er. This new solution has entailed certain legal issues that must be addressed such as the access to the IT system, electronic submission of tenders or the use of an electronic signature to confi rm the statements made in the electronic procedure. All these issues have been discussed in this paper. The paper also contains an analysis of the diff erences between two possible forms of electronic signature that may be used in the process, and identifi es the main advantages and disadvantages of either. It is then concluded that although the online RES auction could be more competitive, in the version as it is it allows to carry out an eff ective auction.
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    Środowisko prawników wobec sytuacji Trybunału Konstytucyjnego. Badania socjologiczno-prawne
    (Wydawnictwo Naukowe UAM, 2017) Stępniak, Kamil
    The recent legal changes pertaining to the institution of the Constitutional Tribunal arouse many controversies. This paper presents a sociological and legal study conducted to collect and examine the opinions regarding the above held by Polish lawyers who because of their profession and experience are in a position to confront directly the legal practice with the changing legal system that is directly responsible for the level of protection of individual rights and the exercise of individual fundamental rights. From the point of view of rationality and functionality of the operations of the Constitutional Tribunal an opinion formulated by jurists who due to their background have greater legal awareness seemed invaluable. After all it will be their opinion which will decide about the future of the judiciary in Poland. The results of the current transformations being implemented in constitutional judiciary as well as at the level of common courts have consequences for all the citizens. The aim of the questions asked in the survey was to fi nd how lawyers in Poland saw the situation with the Constitutional Tribunal today as well as what the though it its regime and functioning could be like in the future. Questions also concerned the current and actual legal status of the Tribunal and the lawyers’ reactions to the changes being implemented or about to me made, and if possible the possible ways of ending the current Constitutional Tribunal crisis.
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    Problemy związane z definicją lasu w polskim systemie prawnym
    (Wydawnictwo Naukowe UAM, 2017) Bujny, Jedrzej; Mądry, Tymoteusz
    The article touches upon the controversies around the defi nition of a forest contained in the provision of Article 3 of the Act of 28 September 1991 on forests, present in the doctrine as well as in judicial decisions in administrative law. The interpretation of the above provision is analysed and the views presented in the doctrine and the judicial rulings, which sometimes include contradicting arguments, are examined. In the fi rst part of the article individual elements of the defi nition of a forest have been identifi ed and the diffi culties with their interpretation that have led to the emergence of a vast number of judicial decisions and rulings delivered by administrative courts as well as the Supreme Court have been presented. The second part contains deliberations on the importance of the data included in the land and buildings register and their potential use for the classifi cation of land as a forest on the grounds of concrete administrative proceedings, including these on tax matters. In this context the normative value of the provisions of the Act of 17 May 1989: Geodetic and Cartographic Law and individual tax laws making these data binding and applicable has been examined as well. Also this latter issue generates frequently diverging opinions expressed by administrative courts. The last part of the paper contains de lege lata and de lege ferenda postulates intended to reconcile the presented controversies connected with the classifi cation of individual land as forest. The authors hope that implementation of these postulates will contribute to the unifi cation of the judiciary opinions regarding the concept of a forest and consequently will help to eliminate the existing doubts.
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    Rodzaje aukcji na wytwarzanie energii elektrycznej z odnawialnych źródeł energii w świetle przepisów ustawy o odnawialnych źródłach energii
    (Wydawnictwo Naukowe UAM, 2017) Kosiński, Eryk; Trupkiewicz, Marcin
    After an analysis of certain legal texts, the authors have established that under Polish law the President of the Energy Regulatory Offi ce may conduct 56 diff erent types of auctions for generators of the electric energy from renewable sources (RSE). For each individual RSE installation complying with the RES parameters a separate auction may be carried. One RSE installation may take part in several RSE auctions provided it satisfi es the parameters of each individual installation. These parameters concern both the premises connected with the start-up process (the commencement of the production of electric energy) of a given installation and the premises of technical nature such as carbon dioxide emission or the level of the installation capacity used, as well as premises of a subjective character regarding individual producers participating in the auction. A detailed analysis of all types of RSE auctions described in the Act of 20 February 2015 on renewable sources of energy allows to determine which types of installation may take part in individual actions. However, of key importance from the point of view of the possibility of a RSE auction to be carried are secondary regulations which allow the Council of Ministers to determine individual types of RSE auctions in which the volume of energy, subject of the auction, will be made available. Consequently the Council of Ministers which runs the State policy within the area of RSE has become essentially responsible not only for the possibility of conducting an RSE auction, but also for the implementation of the EU climate and energy policy which is also binding upon Poland.
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    Zakaz missellingu jako przykład zastosowania behawioralnej koncepcji prawa?
    (Wydawnictwo Naukowe UAM, 2017) Nieborak, Tomasz
    This article concerns the institution of misselling introduced recently to the Polish legal system. Misselling has been commonly defi ned as dishonest sale. Currently, the solution adopted by the Polish legislator applies only to fi nancial services provided by fi nancial institutions to consumers. This regulation is not extensive but it has already stirred a lively debate among the representatives of legal practice and doctrine. This article is a voice in the discussion and its purpose is to identify the public law aspect of the solutions adopted and propose certain actions to be taken at the level of the regulated and the regulating entities and which would account among other things for the new, behavioural way of perceiving a consumer as an informed subject even if not always rational. The need for the evolution of the paradigm of a rational consumer, which is a challenge for the contemporary legislator, has been dictated by the experience gained so far as well as by the changing reality. The market today off ers a range of new fi nancial instruments which while being innovative very frequently carry extreme risk. The intensive and sometimes intrusive advertising of these instruments off ered to ”rational consumers” uses diff erent persuasive marketing techniques and may in eff ect result in a potential loss of stability and security of the fi nancial market. Therefore while implementing the stabilisation narrative promoted within the European Union, legislative bodies in Member States adopt solutions like misselling which are intended to reduce at least partly the risk of another crisis in the fi nancial sector. Its sources go back to the conception of homo oeconomicus, that is a rational consumer who based on the information provided is capable of making a rational decision that is best for him. However, as experience and history show, this attitude is too idealistic and needs being redefi ned. Developing an optimal conception of an informed consumer requires an interdisciplinary approach which apart from the legal and economic elements will take into account the experiences of other branches of science, such as sociology or psychology as well.
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    Administracyjnoprawny obowiązek szczepienia dzieci a zgoda przedstawiciela ustawowego na badania kwalifikacyjne
    (Wydawnictwo Naukowe UAM, 2017) Haberko, Joanna
    The article focuses on the analysis of the parent situation (or statutory representatives) who are under legal requirement to subject their children to preventive vaccination. The main deliberations focus on answering the question of how the parents’ (or statutory representatives’) position should be treated if they, relying on the principle of autonomy and their parental rights, and pointing to their duty to exercise care of a minor and to represent a minor child, fail to take any action intended to implement the obligation imposed by law. Parents refer to the principle of child’s welfare and argue that vaccination constitutes an essential threat to the values they recognise, such as autonomy, freedom to make decisions regarding the actual situation and legal position of a child, or the child’s welfare. The issue of parents’ autonomy and implementation of child’s welfare is raised. Parents often bring up an argument of the harmful eff ects of vaccination and claim that by refusing to agree to vaccination they exercise the principle of child’s welfare. The legal character of the refusal to consent to child vaccination is also analysed. Here, deliberations are set in the context of imprecisely formulated statutory provisions and their mutual relations, especially in the context of the meeting of acts from two branches of law:  administrative and civil, and within the latter family law in particular. An attempt has been made to explain doubts whether despite the mandatory requirement and resulting from it obligation threatened with an administrative fi ne statutory representatives still have a right to express or not consent for vaccination of their children or to decide about at any stage of the procedure.
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